Citation Nr: 9918127
Decision Date: 06/30/99 Archive Date: 07/07/99
DOCKET NO. 93-12 457 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder (other than PTSD), to include
schizophrenia.
2. Entitlement to service connection for post-traumatic
stress disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1971 to
January 1974.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a June 1991 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA), which determined that new and
material evidence had not been submitted to reopen a claim
for anxiety, and denied a claim of entitlement to a rating in
excess of 30 percent for lichen simplex, chronic. Pursuant
to a Board remand in February 1995, the RO reopened the
veteran's claim for service connection for a psychiatric
disorder, to include PTSD. The Board remanded the issue in
July 1997 for additional development. (At that time, the
Board also entered a decision denying the veteran's claim of
entitlement to a rating in excess of 30 percent for lichen
simplex, chronic.)
In light of the applicable laws and a recent decision of the
U.S. Court of Appeals for Veterans Claims, the Board has
determined that the issues on appeal are more accurately
construed as separate claims of "entitlement to service
connection for an acquired psychiatric disorder (other than
PTSD), to include schizophrenia," and "entitlement to
service connection for PTSD." See Best v. Brown, 10 Vet.
App. 322 (1997).
FINDINGS OF FACT
1. No currently diagnosed acquired psychiatric disorder
(other than PTSD), to include schizophrenia, is shown to be
causally or etiologically related to the veteran's period of
service.
2. The veteran is not shown to have engaged in combat, and
there is no credible supporting evidence that an in-service
stressor, which has been medically linked to PTSD, actually
occurred.
3. The veteran does not have PTSD attributable to military
service or to any incident of active duty.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder (other than PTSD), to
include schizophrenia, was not incurred or aggravated during
active duty, and a psychosis may not be presumed to have been
so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107
(West 1991); 38 C.F.R. §§ 3.102, 3.304, 3.307, 3.309 (1998).
2. PTSD was not incurred or aggravated by active service.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102,
3.304(f) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
As an initial matter, the Board notes that in a March 1981
decision, the RO denied a claim of entitlement to service
connection for a nervous condition. A timely appeal was not
perfected, and the RO's March 1981 decision became final. 38
U.S.C.A. § 7105(b). However, applicable law provides that a
claim which is the subject of a prior final decision may
nevertheless be reopened upon presentation of new and
material evidence. 38 U.S.C.A. § 5108.
In March 1991, the veteran filed an application to reopen his
claim for service connection for an acquired psychiatric
disorder. In June 1991, the RO determined that no new and
material evidence had been submitted to reopen a claim for
service connection for an acquired psychiatric disorder, to
include a claim for an anxiety reaction. The veteran
appealed. In February 1995, the Board determined that new
and material evidence had been submitted to reopen a claim
for an anxiety reaction, to include a claim for PTSD, and
remanded the claim for additional development. The Board
remanded the claim for additional development again in July
1997. In October 1998, the RO affirmed its denial.
The veteran's service medical records include a separation
examination report, dated in January 1974, which shows that
his psychiatric condition was clinically evaluated as normal.
The remainder of the service medical records are silent as to
complaints, treatment or a diagnosis involving an acquired
psychiatric disorder or PTSD.
A VA examination report, dated in December 1979, contains
diagnoses that include an anxiety reaction. Several letters
from a VA physician, D. A. Kalali, D.O., dated in 1980,
indicate that the veteran was receiving treatment for
psychiatric symptoms which were alternatively identified as
an "emotional disorder" and a "nervous disorder."
A VA special examination report, dated in July 1980 contains
a diagnosis of paranoid schizophrenia. An accompanying
psychiatric evaluation contains an assessment of paranoid
personality, rule out paranoid schizophrenia.
VA outpatient reports, dated between 1980 and 1991, show that
the veteran was periodically treated for psychiatric symptoms
that included anxiety and paranoia.
Records from the Consolidated City of Jacksonville, Jails and
Prisons Division (Jacksonville), dated in 1992, show that the
veteran's diagnoses included PTSD, and that on two occasions
he reported a 15-year history of psychiatric symptoms. On
several occasions, he also reported that he had received a
punctured lung after being stabbed in July 1991.
A VA examination report, dated in October 1992, shows that
the veteran's Axis I diagnosis noted that the veteran had
chronic anxiety that was said to be "consistent with" PTSD.
The Axis IV diagnosis noted unspecified stressors related to
his service in Vietnam.
Records from the Oak Center, dated in 1994, include a
Minnesota Multiphasic Personality Inventory (MMPI) report,
which notes that the veteran responded to the MMPI-2 "in an
exaggerated manner, endorsing a wide variety of inconsistent
symptoms and attitudes." Possible explanations included
falsely claiming psychological problems.
A VA examination report, dated in September 1995, shows that
the veteran's Axis I diagnosis noted that the veteran had an
anxiety-related disorder that was said to be "probably
reflective of" PTSD, as well as rule out incipient (latent)
schizophrenia, paranoid. The Axis IV diagnosis noted
unspecified stressors related to his service in Vietnam. An
accompanying psychological examination report contains an
Axis I diagnosis of schizophrenia, paranoid type, and an Axis
II diagnosis of paranoid personality disorder (premorbid).
The examiner stated that the veteran's validity scores were
highly elevated, and that this problem with validity
generates a number of possible inflammatory hypotheses. He
further noted that, "The most valuable hypothesis to explain
[the veteran's] validity scale elevations was that he was
endorsing many pathological symptoms. It must also be
considered that he realized that he was taking a compensation
examination and recognized the financial payoff associated
with he exam."
A VA examination report, dated in June 1996, contains
impressions that include PTSD and chronic alcohol abuse.
II. Analysis
As competent evidence of a diagnosis of an acquired
psychiatric disorder (e.g. anxiety disorders and
schizophrenia), and PTSD, and a nexus to active duty, have
been presented, the veteran's claims for an acquired
psychiatric disorder (other than PTSD) and PTSD are well
grounded within the meaning of 38 U.S.C.A. § 5107(a)(West
1991).
The Board initially finds that the veteran is not a credible
historian. He has been diagnosed with schizophrenia, and was
noted to have visual hallucinations in the June 1996 VA
examination report. In addition, a review of the evidence
shows that his statements to VA examiners and adjudicatory
personnel show a number of significant inconsistencies and
omissions, and that in several cases his previous statements
are wholly unsupported and/or contradicted by his service
records, service medical records, and, in one case, a civil
court document. For example, during his VA examination in
June 1996, the veteran stated that his job while in Vietnam
was to write reports going from base to base, and that he
"repeatedly got into firefights." The Board notes that
this assertion of repeated participation in firefights while
traveling from base to base is the first report of this type
of stressor since he filed his claim in March 1991.
Furthermore, records from Jacksonville, dated in 1992, show
that the veteran reported a 15-year history of psychiatric
symptoms (i.e. that his symptoms dated back to 1977) on two
occasions. Jacksonville records also show that on several
occasions he reported that he had suffered a punctured lung
as a result of a stab wound in July 1991. Although all of
the veteran's PTSD diagnoses post-date this stabbing, the
veteran failed to report his stab wound as a stressor to his
VA examiners during examinations in October 1992, September
1995 and June 1996. In addition, at the time of his June
1996 VA examination, the veteran reported that he had been
fired from his job at the post office after "he had a
flashback on the job." However, a court order finding the
veteran in contempt, issued by the Circuit Court of Duval
County, Florida, dated in May 1986, indicates that the
veteran was removed from his job at the U.S. Post Office
"based on his record of prior convictions" (in this regard,
the veteran has reported that he has a history of multiple
arrests for driving under the influence of alcohol, and for
domestic violence). Finally, the Board points out that in
his written statements, the veteran stated that he received
psychiatric treatment while in Vietnam (to include
medication), that on two occasions the officer of the day
found him curled up in the fetal position while on guard
duty, and that he was relieved from certain guard duties due
to his psychiatric symptoms. However, these accounts are not
corroborated by his service records or his service medical
records. In fact, the claims file contains a commendation,
and two letters of appreciation, covering the period of the
veteran's Vietnam service, and his personnel record (DA Form
20) shows that he was promoted to E-4 while in Vietnam. His
conduct and efficiency were consistently evaluated as
excellent while he was in Vietnam. Given the foregoing
evidence, the Board finds that the veteran is not a credible
historian.
A. Acquired Psychiatric Disorder (Other than PTSD)
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition,
certain chronic diseases, including psychoses, may be
presumed to have incurred during service if they become
disabling to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309.
In this case, the Board finds that the evidence does not show
that the veteran had a psychiatric disorder during service,
that he had a compensably disabling psychosis within one year
of his separation from active duty, or that any current
psychiatric disorder (other than PTSD) is linked to his
active duty service. Rather, the record shows that the
veteran not treated for a psychiatric disorder while on
active duty, and that the first diagnosis of an acquired
psychiatric disorder (specifically, an anxiety reaction) is
dated in December 1979. This is approximately five years
after separation from service. In addition, the veteran's
schizophrenia was not presented clinically until 1980. While
the Board has considered the Axis IV diagnoses in the VA
examination reports, dated in October 1992 and September
1995, as evidence of a nexus between an anxiety disorder and
the veteran's service, see e.g., Hernandez v. Toyens, 11 Vet.
App. 379 (1998), the Board notes that these examination
reports were written by the same examiner (Enrique Araneta,
M.D.), and that Dr. Araneta's reports come at least 20 years
after the veteran's active duty, are without the slightest
support by citation to any clinical findings in service or
thereafter, and are not shown to have been based upon a
review of service medical records. Also of particular note,
although the Board has determined that the veteran is not
credible, Dr. Araneta's opinions appear to have been based on
the appellant's verbal recitations of his history, including
his reports of stressors which are not verified by the
evidence. See II.B., infra. The Board therefore finds that
the probative value of Dr. Araneta's opinions are outweighed
by contrary evidence of record. See Kightly v. Brown, 6 Vet.
App. 200, 205-06 (1994) (finding that presumption of
credibility of evidence did not arise as to medical opinion
that veteran's disability was incurred in service because it
was based on an inaccurate history).
Accordingly, the Board finds that the preponderance of the
evidence is against the instant claim, and that service
connection for an acquired psychiatric disorder is not
warranted.
B. PTSD
The veteran asserts that he has PTSD as a result of his
service in Vietnam
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Applicable
regulations provide that service connection for PTSD requires
medical evidence diagnosing the condition in accordance with
38 U.S.C.A. § 4.125 of this chapter, a link, established by
medical evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. 38 C.F.R. § 3.304(f).
The veteran's DD Form 214 indicates that he served in Vietnam
from September 1971 to April 1972. His primary military
occupational specialty (MOS) was that of "CO/DET clerk."
The veteran's DD Form 214 shows that the veteran's awards
include the Vietnam Service Medal and the Republic of Vietnam
Campaign Medal with "60" device.
The veteran's personnel record (DA Form 20) shows that his
principal duty while in Vietnam was clerk typist, and that
and he completed an eight-week clerk typist's course prior to
service in Vietnam. While in Vietnam, he served with HHC
(headquarters and headquarters company) of the 212th CAB, HHC
of the 11th CAG, and with the 203d Assault Helicopter
Company.
As previously stated, the Board has determined that the
veteran is not a credible historian; this determination
extends to his statements regarding his participation in
combat. In addition, the Board finds that there is
insufficient objective evidence to show that the veteran
participated in combat. The veteran's DD 214 does not show
that he received any commendations or awards for
participation in combat with the enemy, such as the Combat
Infantryman Badge, Purple Heart, or similar citation. See
38 C.F.R. § 3.304(f). His MOS was "CO/DET clerk," and his
records indicate that the entire time he was in Vietnam his
principal duty was that of a clerk typist, and that he was
assigned to headquarters detachments of aviation support
units based in Da Nang. There is no evidence in the claims
file showing that the veteran was wounded, or that any member
of the veteran's unit(s) were killed or wounded due to enemy
action at any time during the veteran's service in Vietnam.
See Ashley v. Brown 6 Vet. App. 52, 56 (1993) (noting that
unit casualties may serve as proof of combat). Review of a
commendation, and two letters of appreciation, which date to
the period of the veteran's Vietnam service, are silent as to
participation in combat. The Board has also considered a
letter from the U.S. Army and Joint Service Environmental
Support Group (ESG) (redesignated as the U.S. Armed Service
Center for Research of Unit Records (USASCRUR)), dated in
August 1995, in which the USASCRUR stated that "U.S.
military records list attacks at Marble Mountain, the base
location of the 203d Assault Helicopter Company (ASHC), and
at Da Nang, the base location for the 212th CAB." However,
the veteran's DA Form 20 shows that he served with three
different units while in Vietnam. The USASCRUR's evidence
does not show an attack on any unit while he was attached to
that unit. Finally, although the veteran's DA Form 20 lists
two "campaigns," the Board finds that these entries do not
warrant a determination that the veteran engaged in combat,
as these entries do not give the slightest indication of
their meaning, or of the nature and extent of the veteran's
(or his unit's) participation in these campaigns. In
particular, given their ambiguity, the Board finds that these
notations are of less weight than the evidence in the
veteran's service records, which contain specific information
as to his duty as a clerk typist with support units based in
Da Nang, and which do not show participation in combat. The
Board therefore declines to afford these entries the same
weight as the commendations and awards as specified in
38 C.F.R. § 3.304(f).
Based on the foregoing, the Board's preliminary findings are
that the veteran is not credible, and that the claims file
does not contain credible supporting evidence that the
veteran participated in combat. See Cohen v. Brown, 10 Vet.
App. 128, 145 (1997).
Where a determination is made that the veteran did not
"engage in combat with the enemy," or the claimed stressor
is not related to combat, the veteran's lay testimony alone
will not be enough to establish the occurrence of the alleged
stressor. In such cases, the record must contain service
records or other corroborative evidence which substantiates
or verifies the veteran's testimony or statements as to the
occurrence of the claimed stressor. See West (Carlton) v.
Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet.
App. 91, 98 (1993). In Doran v. Brown, 6 Vet. App. 283, 290-
91 (1994), the U.S. Court of Appeals for Veterans Claims
("Court") stated that "the absence of corroboration in the
service records, when there is nothing in the available
records that is inconsistent with other evidence, does not
relieve the BVA of its obligations to assess the credibility
and probative value of the other evidence." West, Zarycki,
and Doran cited a provision of the VA ADJUDICATION PROCEDURE
MANUAL M21-1 ("MANUAL 21-1") which has now been revised as to
"Evidence of Stressors in Service" to read, in part, ...
"[C]orroborating evidence of a stressor is not restricted to
service records, but may be obtained from other sources."
Since the MANUAL 21-1 October 1995 revision, the Court has
held that the requirement in 38 C.F.R. § 3.304(f) for
"credible supporting evidence" means that the "appellant's
testimony, by itself, cannot establish the occurrence of a
noncombat stressor." See Moreau v. Brown, 9 Vet. App. 389,
395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).
Initially, the Board notes that the Court has held that it is
not an impossible or onerous task for appellants who claim
entitlement to service connection for PTSD to supply the
names, dates and places of events claimed to support a PTSD
stressor. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
In this case, the veteran has claimed a number of stressors,
including witnessing the death of a soldier who was hit by
helicopter blades, seeing a friend named "David" (last name
unknown) shortly after he committed suicide, being in a
helicopter that almost crashed, and witnessing shelling and
ground attacks while at his base. However, a review of the
veteran's statements shows that the veteran has stated that
he cannot provide any significant details as to any
particular stressor, specifically, he cannot provide a
stressor accompanied by a specific location and a reasonably
narrow time frame, nor can he provide the complete name of a
fellow soldier whom he saw wounded or killed, accompanied by
the casualty's unit and the place and time of the incident.
The claims file includes a letter from the USASCRUR, dated in
August 1995, in which the USASCRUR essentially stated that
more information was required before any particular stressor
could be further researched, to include the suicide of a
soldier whom the veteran identified only as "David." The
Board is cognizant of the fact that the sufficiency of a
stressor is a medical determination and is presumed by a
medical diagnosis of PTSD (Cohen, supra), but the occurrence
of a stressor is an adjudicatory determination. As there are
no identified stressors capable of verification, further
development is not required. See Wood, supra; Hayes v.
Brown, 5 Vet. App. 60, 68 (1993).
The Board further finds that none of the claimed stressors
have been verified. In this regard, the USASCRUR's August
1995 letter states that they could not verify any particular
stressor. The USASCRUR's letter was accompanied by a unit
history which does not corroborate any claimed stressor, and
does not show that the veteran, or any unit to which he was
attached at the time, was near any attack. Although the
USASCRUR's letter states that there were some attacks at
Marble Mountain and Da Nang, the Board points out that, to
the extent that the veteran may have been in the general
Marble Mountain/Da Nang area during some attacks, the U.S.
Court of Appeals for Veterans Claims has stated that in such
cases, it is the distressing event, rather than the mere
presence in a "combat zone," which may constitute a valid
stressor for purposes of supporting a diagnosis of PTSD.
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993) (citing Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991)). Thus, the
USASCRUR's August 1995 letter may not be considered as
verification of any particular stressor. The Board is
cognizant of the fact that the sufficiency of a stressor is a
medical determination and is presumed by a medical diagnosis
of PTSD (see Cohen, supra) but the occurrence of a stressor
is an adjudicatory determination. Accordingly, as there are
no verified stressors, the claim must be denied for lack of a
verified stressor.
In this case, the claims file contains several diagnoses of
PTSD, to include the diagnoses in VA examination reports, in
which the veteran's PTSD was related to his service (the
Board also notes that competing diagnoses include
schizophrenia, an anxiety disorder and a paranoid personality
disorder). However, these opinions are insufficiently
probative to warrant service connection. The opinions were
based on a verbal history as reported by the veteran, and
since the veteran's assertions of participation in combat are
not credible, and since there are no verified stressors, the
Board is not required to accept the etiological conclusions
in these opinions. See West v. Brown, 7 Vet. App. 70, 77-78
(1994); Swann v. Brown, 5 Vet. App. 229, 233 (1993). As
unsupported conclusions, these opinions are insufficient to
warrant a grant of service connection for PTSD. See Moreau
v. Brown, 9 Vet. App. 389, 396 (1996); Dizoglio v. Brown, 9
Vet. App. 163, 166 (1996). In any event, although the
diagnoses of PTSD are sufficient to well ground the claim,
the Board has determined that no stressors have been verified
by service records or other evidence, as required by
38 C.F.R. § 3.304(f).
Consequently, the veteran's claim for service connection for
PTSD fails on the basis that all elements required for such a
showing have not been met; and that the preponderance of the
evidence is against entitlement to service connection for
PTSD. Accordingly, service connection for PTSD must be
denied.
In reaching this decision, the Board has considered the
veteran's representative's arguments that VA had an
obligation to follow ESG's suggestions with respect to
investigating alternate sources for information concerning
the veteran's alleged stressors. In its remand, dated in
July 1997, the Board directed the RO to obtain documents from
the veteran's unit from the National Archives and Records
Administration (NARA). Since the veteran failed to specify
full names and/or a reasonably narrow time frame with regard
to his claimed stressors, the Board's remand instruction
requested Morning Reports (MR's), daily staff journals and
"after action reports-lessons learned" for the veteran's
unit during the entire period of his tour of Vietnam.
However, in June 1998, NARA informed the RO that the request
encompassed over 3,200 pages of material, and that the cost
would be $815.00.
Generally, it constitutes error on the part of the Board to
fail to insure compliance with remand instructions. Stegall
v. West, 11 Vet. App. 268 (1998). However, in a precedential
opinion by the VA General Counsel, which is binding upon the
Board pursuant to 38 U.S.C.A. § 7104(c) (West 1991), it was
held that NARA may charge a fee to provide VA with copies of
records requested in connection with benefits claims, and
that VA may require claimants to assume responsibility for
such a fee. VAOPGCPREC 7-95, 60 Fed. Reg. 19809 (1995). In
this case, the veteran has failed to specify a reasonably
narrow time frame for his stressors, and he has been advised
that NARA's cost of reproducing the requested documents is
$815.00. The veteran apparently is unwilling or unable to
pay this fee. Accordingly, the Board finds that VA's
statutory duty to assist has been fulfilled, and that a
remand is not required in order to obtain the previously
requested documents from NARA. 38 U.S.C.A. § 5107.
C. Conclusion
The Board considered the doctrine of reasonable doubt,
however, as the preponderance of the evidence is against the
veteran's claims, the doctrine is not for application.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
1. Entitlement to service connection for an acquired
psychiatric disorder (other than PTSD), to include
schizophrenia, is denied.
2. Entitlement to service connection for PTSD is denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals